Libertarian candidates might have a case, analyst says

Libertarian candidates Chad Haber and Ryan Gaddy might have violated South Dakota’s law requiring nominees to be members of the party nominating them.

But that law might be unconstitutional, judging by a 1986 U.S. Supreme Court decision, a legal analyst said.

Richard Winger, editor of the Ballot Access News newsletter and an advocate for minor-party candidates’ access to the ballot, said the Supreme Court is “unambiguous” in its ruling.

“Were the State ... to provide that only Party members might be selected as the Party’s chosen nominees for public office, such a prohibition of potential association with nonmembers would clearly infringe upon the rights of the Party’s members under the First Amendment to organize with like-minded citizens in support of common political goals,” Justice Thurgood Marshall wrote for a 5-4 majority in Tashjian v. Republican Party of Connecticut.

Winger said 17 states have similar laws to South Dakota — and several more have been tossed out by the courts.

“This sentence in the Supreme Court Tashjian decision is so clear and unambiguous that every time a lower court has had to think about it, they’ve ruled in favor of the party and against the state,” Winger said.

In a 2011 case, Woodruff v. Herrera, a federal judge in New Mexico cited Tashjian to overturn a law requiring nominees to be members of the party nominating them. That case concerned a member of the Green Party.

Secretary of State Jason Gant is examining the law and considering whether to certify Haber, nominated for attorney general, and Gaddy, nominated for Public Utilities Commission.

His ruling was delayed by Attorney General Marty Jackley’s decision to recuse his entire office from providing legal advice to Gant on the matter. The attorney general usually provides legal advice to the secretary of state’s office, but this case presented a potential conflict of interest because the advice could determine whether Jackley has a general election opponent.

Gant has declined to comment on the election law at issue until he rules.